Board of Comm'rs, Wabaunsee Cty. v. Umbehr 518 U.S. 668 (1996)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 94-1654. Argued November 28, 1995-Decided June 28,1996

During the term of his at-will contract with Wabaunsee County, Kansas (County), to haul trash, respondent Umbehr was an outspoken critic of petitioner Board of County Commissioners (Board). After the commissioners voted to terminate (or prevent the automatic renewal of) the contract, allegedly because they took Umbehr's criticism badly, he brought this suit against two of them under 42 U. S. C. § 1983. The District Court granted them summary judgment, but the Tenth Circuit reversed in relevant part and remanded, holding that the First Amendment protects independent contractors from governmental retaliation against their speech, and that the extent of that protection must be determined by weighing the government's interests as contractor against the free speech interests at stake in accordance with the balancing test applied in the government employment context under Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568.

Held: The First Amendment protects independent contractors from the termination or prevention of automatic renewal of at-will government contracts in retaliation for their exercise of the freedom of speech, and the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of that protection. Pp. 673-686.

(a) Because of the obvious similarities between government employees and government contractors with respect to this issue, the Court is guided by its government employment precedents. Among other things, those precedents have recognized that government workers are constitutionally protected from dismissal for publicly or privately criticizing their employer's policies, see, e. g., Perry v. Sindermann, 408 U. S. 593, but have also acknowledged that the First Amendment does not guarantee absolute freedom of speech, see, e. g., Connick v. Myers, 461 U. S. 138, 146, and have required a fact-sensitive and deferential weighing of the government employer's legitimate interests against its employees' First Amendment rights, see, e. g., Pickering, supra, at 568. The parties' attempts to differentiate between inde-

pendent contractors and government employees are unavailing. Each of their arguments for and against the imposition of liability has some force, but all of them can be accommodated by applying the existing government employee framework. Moreover, application of the nuanced Pickering approach is superior to a bright-line rule giving the government carte blanche to terminate independent contractors for exercising their speech rights. Although both the individual's and the government's interests are typically-though not always-somewhat less strong in an independent contractor case, the fact that such contractors are similar in most relevant respects to government employees compels the conclusion that the same form of balancing analysis should apply to each. Pp. 673-681.

(b) Neither the dissent's fears of excessive litigation, nor its assertion that the allocation of government contracts on the basis of political bias is a longstanding tradition, can deprive independent contractors of protection. Its own description of "lowest-responsible-bidder" requirements in a wide range of government contracting laws voluntarily adopted by federal and state authorities suggests that government contracting norms incompatible with political bias have proliferated without unduly burdening the government, and such laws have a long history. Pp. 681-685.

(c) Because the courts below assumed that Umbehr's termination (or nonrenewal) was in retaliation for his protected speech activities, and did not pass on the balance between the government's interests and his free speech interests, the conclusion that independent contractors do enjoy some First Amendment protection requires affirmance of the Tenth Circuit's decision to remand the case. To prevail, Umbehr must show initially that the termination of his contract was motivated by his speech on a matter of public concern, see Connick, supra, at 146; he must therefore prove more than the mere fact that he criticized the Board members before he was terminated. If he can do so, the Board will have a valid defense if it can show, by a preponderance of the evidence, that, in light of their knowledge, perceptions, and policies at the time of the termination, the Board members would have terminated the contract regardless of his speech. See Mt. Healthy City Ed. of Ed. v. Doyle, 429 U. S. 274,287. The Board will also prevail if it can demonstrate that the County's legitimate interests as contractor, deferentially viewed, outweigh the free speech interests at stake. See, e. g., Pickering, supra, at 568. And, if Umbehr prevails, evidence that the Board members discovered facts after termination that would have led to a later termination anyway, and evidence of mitigation of his loss by means of subsequent trash hauling contracts with cities in the County, would be relevant in assessing the appropriate remedy. Because

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